Case 1:15-cv-00322 Document Filed 08/13/15 Page
NING LILLY JONES
MICI{AEL LILLY #1681
707 Richards Street, Suite 700
Honolulu, Hawaii 96813
Email: Michael@nljlaw.com
Telephone: (808) 528-1 100
Facsimile: (808) 1-241
Attomeys for Plaintiffs
KELII AKINA, KEALII MAKEKAU,
JOSEPH KENT, YOSHIMASA SEAN
MITSUI, PEDRO KANAE GAPERO,
and MELISSA LEINAALA MONIZ THE LINITED STATES DISTzuCT COURT
FORTFIE DISTRICT HAWAII
KELII AKINA, KEALII MAKEKAU,
CIVILNO
JOSEPH KENT, YOSHIMASA SEAN
MITSUI, PEDRO KANAE GAPERO, and
MELIS LEINAALA MONIZ,
COMPLAINT
Plaintiffs,
vs.
TIIE STATE HAWAII;
GOaERNOR DAVID IGE, his official
capacity; ROBERT LINDSEY JR.,
Chairperson, Board Trustees,
Office Hawaiian Affairs, his offrcial
capacity; COLETTE MACIIADO,
PETER APO, HAITNANI APOLIONA,
ROWENA M.N. AKANA, JOHN
WAIHEEIV, CARMENHULU
LINDSEY, DAN AHUNA, LEINAALA
AHU ISA, Trustees, Office Hawaiian
Affairs, their official capacities;
KAMANA OPONO CRABBE, Chief
Executive Ofhcer, Office Hawaiian
(Caption continued next page)
Case 1:15-cv-00322 Document Filed 08/13/15 Page
Affairs, his official Capacity; JOHN
WAIHEE III, Chairman, Native Hawaiian
Roll Commission, his official
Capacity; LEHU ANTHONY, LEI
KIHOI, ROBIN DANNER, HEALANT
WENDT, Commissioners, Native Hawaiian
Roll Commission, their official capacities;
CLaDE MUO, Executive Director,
Native Hawaiian Roll Commission, his
official capacity; AKAMAI
FOUNDATION; and TIIE NAI AIIPLINI
FOLINDATION; and DOE DEFENDANTS
l-50,
Defendants.
COMPLAINT
Plaintiffs, their attorneys, bring this action for declaratory and injunctive
relief and allege follows:
INTRODUCTION
Plaintiffs are individual registered voters who seek declaratory and
injunctive reliefto enjoin race-based, viewpoint-based, and other restrictions and
qualifications imposed Hawaii law and enforced agents the State
Hawaii those seeking register voters list (the Roll) maintained
the defendants. Voters who are the Roll will entitled vote for the
delegates proposed constitutional convention, the intended purpose which choose form govemment under which Native Hawaiians would govem
themselves. Plaintiffs allege that the restrictions registering for the Roll violate
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the U.S. Constitution, including the Equal Protection Clause the Fourteenth
Amendment, the Fifteenth Amendment, the First Amendment, and the Due Process
Clause the Fourteenth Amendment; and federal law, including the Civil Rights
Act 1871, U.S.C. 1983, and Section the Voting Rights Act 1965,52
u.s.c. 10301.
Plaintiffs seek (1) declaratory judgment that these voting restrictions
and qualifications violate their constitutional and federal statutory rights; (2)
permanent injunction against their further use implementation; and (3) costs and
attorneysfees.
JURISDICTIONAND YENUE
This Court has jurisdiction over this matter pursuant U.S.C
1331, 1343, and 1357;42 U.S.C. 1983 and 1988; and U.S.C. 10301 and
10308. Furthermore, this Court has jurisdiction over Plaintiffs request for
declaratory relief pursuant U.S.C. 2201 and2202. Jurisdiction for
Plaintiffs claim for attorneys fees based U.S.C 1988(b) and U.S.C. 10310(e).
This Court has personal jurisdiction over the defendants, all ofwhom
are officials, employees, agents the State Hawaii, and all whom are
Hawaii residents.
Venue proper this Court pursuant U.SC. 1391(b).
Case 1:15-cv-00322 Document Filed 08/13/15 Page
PARTIES
PlaintiffKelii Akina citizen
and resident the State Hawaii,
and registered voter. descendant the aboriginal peoples who, prior
1778, occupied and exercised sovereignty the Hawaiian islands. Mr. Akina was
prevented from registering voter the Roll because viewpoint-based and
other restrictions and qualifications imposed and enforced the defendants.
Plaintiff Kealii Makekau citizen and resident the State
Hawaii, and registered voter. descendant the aboriginal peoples who,
prior 1778, occupied and exercised sovereignty the Hawaiian islands. Mr.
Makekau was prevented from registering voter the Roll because
viewpoint-based and other restrictions and qualifications imposed and enforced
the defendants.
Plaintiff Joseph Kent citizen and resident the State Hawaii,
and registered voter. Mr. Kent was prevented from registering voter the
Roll because ofrace-based and other restrictions and qualihcations imposed and
enforced the defendants.
Plaintiff Yoshimasa Sean Mitsui citizenand resident the State Hawaii, and registered voter. Mr. Mitsui was prevented from registering
voter the Roll because ofrace-based and other restrictions and qualifications
imposed and enforced the defendants.
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10.
Plaintiff Pedro Kanae Gapero citizen and resident the State
Hawaii, and registered voter. descendant the aboriginal peoples who,
prior 1778, occupied and exercised sovereignty the Hawaiian islands. Mr.
Gapero was registered for the Roll without his knowledge consent.
ofTexas.
Plaintiff Melissa Leinaala Moniz citizen and resident the state
She descendant
ofthe aboriginal peoples who, priorto 1778,
occupied and exercised sovereignty the Hawaiian islands. Ms. Moniz was
registered for the Roll without her knowledge consent.
12.
Defendant State Hawaii sovereign state the United States
America.
13.
Defendant David Ige the Govemor the state Hawaii, and
being sued his official capacity the State officer charged with responsibility
for the faithful execution the laws Hawaii well those the United
States. The Governor resides 320 South Beretania Street, Honolulu, Hawaii
96813.
14.
Defendant Robert Lindsey the Chairperson the Board
Trustees the Office Hawaiian Affairs
(OHA;, and being sued his
official capacity. oHA department the State Hawaii, and
has basic
responsibilities relating the maintenance the Roll, including, but not limited
to, responsibility for funding the Native Hawaiian Roll Commission and for
Case 1:15-cv-00322 Document Filed 08/13/15 Page
cooperating with the performance its duties.
,See
Act 195,
Session (codified chapter 10H, Hawaii Revised Statutes)
201 Legislative
(Act 195),
OHAs principal place business 560 North Nimitz Highway, Honolulu,
Hawaii 96817.
15.
Defendants Colette Machado, Peter Apo, Haunani Apoliona,
Rowena M.N. Akana, John Waihee IV, Carmen Hulu Lindsey, Dan Ahuna,
and Leinaala Ahu Isa are the other Trustees the Board Trustees OHA.
Defendant Kamanaopono Crabbe the Chief Executive Officer
OIIA.
These
defendants are being sued their official capacities.
16.
Defendant John Waihee
III the Chairman the Native
Hawaiian Roll Commission (the NHRC), and being sued his official
capacity. The NHRC was established Act 195 the agency most directly
responsible for preparing and maintaining the Roll and for certiffing that voters
who register for the Roll meet its requirements. HAw. REV. Srar. 10H-3. The
principal place business the NHRC 1960 Naio Street, Honolulu, Hawaii,
96817.
17.
Defendant lehu Anthony the Vice-Chairman and
Commissioner, and Defendants Lei Kihoi, Robin Danner, and Mahealani Wendt
are the other Commissioners, the
NHRC. Defendant Clyde muo the
Executive Director the NHRC. These defendants are being sued their official
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capacities.
18.
Defendant The Akamai Foundation
(4F)
is, information and
belief, 501(cX3) nonprofit organization existing under the laws the State
Hawaii, with its principal place business 1136 Union Mall, Honolulu, Hawaii
96813. has entered into contracts with oHA and The Nai Aupuni Foundation
pursuant which OHA agreed provide about $26 million AF, which
tum agreed grant The Nai Aupuni Foundation conduct election
which voters registered the Roll will elect delegates constitutional
convention.
Defendant The Nai Aupuni Foundation
(NAF)
is, information
and belief, domestic, nonprofit organization, with its principal place business
at745 Fort Sfeet, Honolulu, Hawaii, 96813. information and belief, NAF was
created for the sole pu{pose conducting election which those voters who
are registered the Roll
20.
will
elect delegates constitutional convention.
Doe Defendants 1-50 are persons, partrerships, associations,
companies, corporations, entities whose names, identities, capacities, activities
and/or responsibilities are presently unknown Plaintif their attorneys, except
that Doe Defendants 1-50 were and/or are subsidiaries, seryants, employees
representatives, co-venturers, associates, consultants, owners lessees, lessors
guaxantors, assignees, assignors, licensees, and/or licensors Defendants and were
Case 1:15-cv-00322 Document Filed 08/13/15 Page are some manner presently unknown Plaintiffs their attomeys engaged
involved the activities alleged herein responsible for the activities which
Plaintiffs complain, should subject the relief Plaintiffs seek. Plaintiffs pray
for leave certifu the true names, identities, capacities, activities and/or
responsibilities Doe Defendants 1-50 when, through further discovery this case,
the same are ascertained. Plaintiffs have made good faith effort identiff said
Doe Defendants prior filing this Complaint, including interviewing witnesses and
reviewing publicly available documents.
FACTUAL ALLEGATIONS
Background
2I.
Congress
The Hawaii Homes Commission Act (HHCA) was enacted
1920 address concems over poverty and population decline among
the native population Hawaii. HR. Rep No. 839, 66th Cong., 2nd Sess
(1920). The HHCA defined,Native Hawaiian any descendant not less
than one-half part the blood the races inhabiting the Hawaiian Islands
previous 7778.
The HHCA made about 200,000 acres public lands available lease such native Hawaiians nominal prices. HHCA 201, 203
22.
When Hawaii was admitted the hftieth state
1959, Congress
granted the government Hawaii title certain lands previously held the
United States, including the lands set aside the HHCA. These lands were
Case 1:15-cv-00322 Document Filed 08/13/15 Page
held public trust for certain specified purposes. Hawaii Statehood
Admission Act March 18, 1959, Pub. No. 86-3, Stat. (Admission Act);
Intro., 5(b).
One purpose was the betterment the conditions native
Hawaiians defined the HHCA. Admission Act 5(f). The other four
purposes, which applied all Hawaiians, were the support the public schools
and other public educational institutions the development farm and home
ownership widespread basis possible the making public
improvements, ffid the provision lands for public use Admission Act
24.
1978, the Hawaii Constitution was amended establish OHA
FlAw. coNsr. ARr.
XII, The Hawaii constitution provides that oF{A shall
hold title all the real and personal property now hereafter set aside
conveyed which shall held trust for native Hawaiians and Hawaiians.
Id. oqAhas been granted
statutory authority administer 20% all funds
derived from the public land trust, exclusive lands set aside pursuant the
HHCA. HAw. REV. Srar. 10-3, 10-13.5.
25.
The Hawaii constitution provided that oF{As board trustees shall
be,,elected qualified voters who are Hawaiians, provided law. The boa
members shall Hawaiians. HAW. CONST. Anr.
XII, Hawaiian defined
Case 1:15-cv-00322 Document Filed 08/13/15 Page Hawaii law any descendant the aboriginal peoples inhabiting the
Hawaiian Islands which exercised sovereignty and subsisted the Hawaiian
Islands
1778, and which peoples thereafter have continued reside Hawaii.
HAw. REV. SrAr. 10-2.
26. 2000, the United States Supreme Court struck down Hawaiis
requirement that only Hawaiians, defined Hawaii law, could vote for the
trustees OHA, the ground that this voting restriction violated the Fifteenth
Amendment the U.S. Constitution. Rice Cayetano, 528 U.S. 495, 524 (2000). the course that ruling, the Court observed that [a]lthough apparent that
OIIA
has unique position under state law, just apparent that remains
arm the sta e.,, Id. 521. The court also observed that Hawaiis law used
ancestry proxy for race. Id. 514.
27.
In2002,the United States Court Appeals for the Ninth Circuit
struck down Hawaiis requirement that candidates for OHA Hawaiians,
defined Hawaii law, violation the Fifteenth Amendment the U.S.
Constitution and Section the Voting Rights Act, U.SC. 10301.
Arakabi State Hawaii,314 F.3d 1091, 1098
19h
Cit.
ZOOZ
Act 195
28. July 2011, Hawaii Govemor Neil Abercrombie signed Act 195 into
1aw.
Case 1:15-cv-00322 Document Filed 08/13/15 Page
29.
Act
195 provides that the purpose this chapter provide tor
and implement the recognition the Native Hawaiian people means and
methods that
30.
will facilitate their self-govemance
Act
HAw. REV. SrAr l0H-2
195 establishes the NHRC subdivision within OHA for
administrative pulposes, and charges with responsibility for [p]reparing and
maintaining
roll qualified Native Hawaiians and [c]ertiffing that the
individuals the roll qualified Native Hawaiians meet the definition
qualified Native Hawaiians. HAw RBv. Srer. 10H-3(a)
31.
Act
195 states that the the
roll qualified Native Hawaiians
intended facilitate the process under which qualified Native Hawaiians may
independently commence the organization convention qualif Native
Hawaiians, established for the purpose organizing themselves. IIAW. REV.
SrAr. 10H-5.
32.
Act 195 provides that qualified Native Hawaiian means
individual whom the NHRC has determined meet certain criteria eligibility
established the
Act. The first criterion based ancestry, and defines
qualified Native Hawaiian one who descendant the aboriginal peoples
who, prior 7778, occupied and exercised sovereignty the Hawaiian islands,
the area that now constitutes the State Hawaii; one who was eligible
for HHCA lease, descendant such person; one
l92l
who meets the
Case 1:15-cv-00322 Document Filed 08/13/15 Page
ancestry requirements Kamehameha Schools any Hawaiian registry
program the office Hawaiian affairs.
33.
have
Act
195 further specifies that qualified Native Hawaiian must
,,maintained significant cultural, social, civic connection the Native
Hawaiian community; and must also wish[] participate the organization
the Native Hawaiian goveming entity.
The Process Reeisterins for the Roll
34.
starting lnJuly 2}l2,prospective voters could register for the Roll.
35. information
and belief, many tens thousands registrants
currently the Roll were placed there without their knowledge consent, when
their names were transferred from other lists containing the names Native
Hawaiians.
36.
Plaintiffs Gapero and Moniz were placed and registered for the
Roll without their knowledge consent
37. information and belief, registration was closed and subsequently
reopened one more times since July 2012.
38.
Registration for the Roll present open
39.
Registration available online http://www.kanaiolowalu.org/. The
screen that website has clickable area labeled REGISTER. Placing the
cursor over that area reveals two options, REGISTER (IIAWAIIANS) and
Case 1:15-cv-00322 Document Filed 08/13/15 Page
SIGN TFIE PETTTTON (EVERYONE).
40.
Selecting SIGN
PETITION (EVERYONE) does not allowthe
option registering for the Roll, but only allows one express support for the
Roll, for the efforts the Native Hawaiian people restore self-govemance
the Hawaiian Nation, for the unrelinquished sovereignty the indigenous
people Hawaii, for the commitment bring recognition the indigenous
people Hawaii, and for the movement restore sel govemance the
Hawaiian Nation.
41.
Selecting REGISTER (HAWAIIANS) refurns single screen,
entitled REGISTER NOW. That screen contains three declarations; information
boxes requesting name, birth information, and contact information; checkboxes
requesting Verification Native Hawaiian Ancestry, and clickable area
labeled CONFIRM INFO.
42.
The three declarations, which all prospective applicants must conhrm,
read follows:
Declarations
Declaration One. affirm the unrelinquished sovereignty the Native
Hawaiian people, and intent participate the process selfgovernance.
Declaration Two. have significant cultural, social civic connection
the Native Hawaiian community.
Declaration Three. Native Hawaiian: lineal descendant the
people who lived and exercised sovereignty the Hawaiian islands prior
Case 1:15-cv-00322 Document Filed 08/13/15 Page
1778, person who eligible for the programs the Hawaiian Homes
Commission Act, 1920, direct lineal descendant that person.
43.
The area labeled Verification Native Hawaiian Ancestry reads
follows:
Verification Native Hawaiian Ancestry
Please check all applicable categories. (at least one required) birth certificate lists (Part) Hawaiian One parents birth certificate lists (Part) Hawaiian
Other official certificate/registry listing (Part) Hawaiian Attended The Kamehameha Schools Department Hawaiian Home Lands lessee, renter, wait list (verified) Operation Ohana
Kau Inoa (ancestry confirmed) Kamehameha Schools Hooulu Hawaiian Data Center
Hawaiian Registry OHA
None ofthese fit but can prove ancestry through another ancestor
44.
There way register for the Roll without confirming the
information, including the declarations and the verification checkboxes, contained the page entitled REGISTERNOW.
45.
Those plaintiffs who deliberately tried register for the Roll were
unable confirm the truth one more the declarations contained the
screen entitled REGISTER NOW.
46.
Plaintiffs Akina and Makekau could not confirm the principles
enunciated Declaration One, although they could confirm their ties the Native
Hawaiian community (Declaration Two) and their Native Hawaiian ancestry
(Declaration Three). Further, they could have provided information sufficient
Case 1:15-cv-00322 Document Filed 08/13/15 Page
satis the veriflcation-of-ancestry checklist.
47.
Plaintiffs Kent and Mitsui could not confirm any the declarations,
nor could they have supplied information sufficient satisff the verification-ofancestry checklist.
48. result, none tlese plaintiffs were able register for the Roll.
The Joint Conduct OHA. NHRC. AF. and NAF
49. the period from about Aprir 27, 2015, about May 2015,
representatives OHA, AF, and NAF signed agreement entitled Grant
Agreement Between the Akamai Foundation and the ofhce Hawaiian Affairs
for the Use and Benefit Nai Aupuni (Grant Agreement). sum and
substance, the Grant Agreement authorizes the transfer from OHA AF, for the
use NAF, grant the total amount $2,598,000.00 The Grant
Agreement provides that
will direct the use the grant [NAF] may
facilitate election delegates, election and referendum monitoring,
govemance Aha [constitutional convention], and referendum ratifu any
recommendation the delegates arising out the Aha (Scope Services).
50. about April27,2075, AF, Fiscal Sponsor, andNAF,
Client, signed Fiscal Sponsorship Agreement Between Akamai Foundation
and
Nai Aupuni (sponsorship Agreement), which
sets forth, among other
things, the Nai Aupuni Projected Budget, describing relevant election-related
Case 1:15-cv-00322 Document Filed 08/13/15 Page
tasks and describing the use the entire grant amount described the Grant
Agreement.
51. about May and 8,2015, OIIA, AF, and NAF signed
agreement entitled Letter Agreement Between Office Hawaiian Affairs,
Nai
Aupuni, and Akamai Foundation (Letter Agreement), which provides, arnong
other things, for initial payment under the Grant Agreement
52. the period from about June 18, 2015, Jute 22,2015, NAF and
Election America, Inc. (EAI),
private company with its principal place
business Mineola, New York, signed contract whereby EAI would perform
certain services relating the Roll and the planned election for constitutional
convention,foratotalcompensationof$177,208.
Thatcontractreferredtothe
following schedule:
Tentative Project Timeline
E-A [EAI] will mail email Notice Election known
electorate. ..... .July 1,5,2015
Deadline for submitting Delegate candidate
Applications... .... ........September 15, 2015
Deadline for E-A determine eligibility Delegate
Candidates. .....September 201
Deadline for additions
.....October l5,20l5
electorate.....
Ballots mailed and/or emailed known
...November 1,2015
electorate.....
Deadline for ballots
received.......
53.
...December 1,2015 article the HoNol-uLU SrAR ADVERTISER dated July 5,2015,
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and written Christine Donnelly, apparently based conversations
with
representatives NAF, the following schedule was made public: Late July early August: Notices sent certified voters explaining the
apportionment ofdelegates, how file delegate candidate and the
votingprocess....
Application available for delegate candidates. Mid-September: Deadline file delegate candidate. End September: List qualified delegate candidates announced. Mid-October: Voter registration closes. Early November: Voting begins. Early December: Voting ends. Day after voting ends: Election results announced publicly Between February and April 2016: Aha held Oahu over the course
eight consecutive weeks (40 work days, Monday through Friday). Two months after aha concludes: delegates recommend form
Hawaiian govemment, referendum will held among all certiflred Native
Hawaiian voters. Late July early August:
54. information and belief, OHA and the NHRC attempted shield
themselves from legal responsibility for setting race-based, viewpoint-based,
and other restrictions voters and candidates the proposed election based
the Roll contracting with and NAF.
55. letter dated July 14,2015, the NHRC informed plaintiffs counsel
that OIIA stopped tunding the NHRC June 30,2015.
56. information and belief, some atl the funds OHA previously
allotted the NHRC have been transferred instead and NAF.
57.
Legal tasks NHRC previously was responsible for have been
transferred and NAF.
Case 1:15-cv-00322 Document Filed 08/13/15 Page
58. reflected the written minutes OHAs Board Trustees
meeting February 26,20t5, Trustee Ahu Isa questioned the legality and
allowability using trust monies fund Kanaiolowalu [the election effort based the
Rolll.
Trustee Hulu Lindsey then asked how
OIIA will able monitor
the use their funds. After few further comments, Mr. Meheula
ofNAF
stated
that once fiscal sponsor identified [AF eventually was identified], they
execute three-party agreement between OFIA, the fiscal sponsor, and
will
Nai
Aupuni. That agreement will spell out some oHAs concems, but will also give
Nai Aupuni autonomy decide their own. that point, Trustee Apo
stated that believes that this very tricky navigation required. overly
cautious [sic] that keep tying ourselves this, are going get sued.
believes OHA has stop talking about making people accountable
us.
information and belief, OHAs trustees intended achieve the goals Act 195
but planned use nonprofit surrogates order so.
59.
Under the relevant law, and NAF are both state actors The State Hawaii cannot avoid liability for its constitutional and statutory transgressions the simple trick contracting with nonprofits.
60.
OHA state agent defined the Hawaii Constitution, and has been
expressly found the Supreme Court arm ofthe State (Rice
Cayetano,528 U.S. 521).
Case 1:15-cv-00322 Document Filed 08/13/15 Page
61.
The NHRC was established under Hawaii law Act 195 for public
pu{pose, and received its funding from OHA (Act 195, Section
4). The NHRC
equally state actor.
62.
OIIA actively favors and pursuing the purposes
set forth
Act 195,
and specifically, the intent utilize list qualified Native Hawaiians select
delegates constitutional convention that would
establish rules for Native
Hawaiians self-govemance.
63.
For example, OHAs website http://www.oha.org/, clickable
area reads follows:
GOVERNANCE
Laying the foundation for building new Hawaiian goveming ent
Our focus govemance involves facilitating process for Native
Hawaiians form governing entity. recognized governing entity would
solidify Native Hawaiians political rather than racial group,
safeguarding trusts, programs, and funding sources serving Native
Hawaiians. goveming entity could advocate and negotiate greater selfsufficiency and autonomy for Native Hawaiians.
64.
Upon selectin that area, another screen appears containing,
relevant part, the following text (emphasis added)
Govemance
Strategic Priority: fsovereignty] restore pono and ea, Native Hawaiians will achieve selfgovernance, after which the assets OHA will transfened the new
governing entity.
Why this important?
Native Hawaiian self-governance utmost importance our
organizations efforts improve conditions for Native Hawa ans. key
Case 1:15-cv-00322 Document Filed 08/13/15 Page
goal our efforts facilitate process that gives Hawaiians the
opportunity re-develop government that reffirms Native Hawaiians political rather than racial group.
The benefit such Native Hawaiian government its ability
provide Native Hawaiians with greater control over their destiny they
mov lf- det erm ination and self-suffi ciency. Native Hawaiian
programs and assets that benefit Native Hawaiians can attacked federal
courts political recognition from the federal govemment not extended
Native Hawaiians.
I4lhat our aim?
The transfer ofassets new governing entity
Adoption the Board ofTrustees ofa Transition Plan that includes
the legal transfer assets and other resources the new Native Hawaiian
governing entily.
goal all Native Hawai ans participate the nationbuilding process and allow them decide what form Hawaiian nation will
take and what sort relationships will seek with other government [sic]
The emergence Native Hawaiian government extremely
important the Office Hawa Afairs.
For that reason, OHA putting lot effort into encouraging Native
Hawaiians participate the process ensure their voices are heard. March 2014, OFIAs Board Trustees made public the agencys
commitment helping smooth the way for Native Hawaiians build
OHAs
govemment.
Since then, OIIA has launched outreach campaign aimed
informing the public about the nation-building process. The campaign
featured town hall-style meetings across the state well canvassing
Hawaiian homestead communities, where volunteers knocked doors
familiarize Native Hawaiians with this new opportunity better manage
their future.
65.
The website contains other information and videos supporting the
same goals.
66.
Act
The NHRC actively favors and pursuing the purposes set forth
195.
Case 1:15-cv-00322 Document Filed 08/13/15 Page
67. the NHRC website, virtually every page contains some expression support for the purposes Act 195.
68.
Private actors who perform public rnction the direction
request state actors thereby become state actors.
69.
The conduct elections exclusively public function.
70. seeking conduct, and conducting, election based the
Roll, and NAF have become state actors subject the restraints federal
constitutional and statutory law.
71.
Joint action exists where the govemment affirms, authorizes,
encourages, facilitates unconstitutional conduct through its involvement with
private party.
72. signing, and paying for, agreements with and NAF caf,ry
out the very purposes that OIIA has expressly stated wants achieve, OHA has
affirmed, authorized, encouraged, and facilitated the wrongful action that the
subject this lawsuit, thereby rendering and NAF state actors subject the
restraints federal constitutional and statutory law.
73.
State compulsion exists where state has exercised coercive power
has provided such significant encouragement, either overt covert, that the
private actors choices are deemed those ofthe State.
74. signing, and paying for, agreements with and NAF, OIIA
Case 1:15-cv-00322 Document Filed 08/13/15 Page
provided such covert encouragement that AFs and NAFs choices should
deemed those the State Hawaii.
75. private party acts under color state law ifthere
sufficiently close nexus between the State and the challenged action, that the
action the private party may fairly treated that the itself.
76.
The detailed, written agreements, paid for OHA, accomplish the
very purposes OFIA has expressly sought achieve, establish close nexus
between
OIIA
and and NAF, such that their actions should treated state
actlon.
The Need for Section 3(c) Relief
77.
This the third lawsuit, following Rice Cayetano and Arakahi
State Hawaii, arising out attempt Hawaiian officials use race-based
qualifications restrict who may register vote, and who may run for office
for particular Hawaiian elections. this case, moreover, trustees OHA
expressly discussed the possibility being sued for their actions, while seeking
accomplish their discriminatory goals using contractually bound nonprofit
organizations surrogates.
78. the absence relief under Section 3(c) the Voting Rights Act, U.S.C. 10302(c), Hawaii
will
continue violate the Voting Rights Act and
the voting guarantees the Fourteenth and Fifteenth Amendments.
Case 1:15-cv-00322 Document Filed 08/13/15 Page
CLAIMS
Claims Allegins Race-Based Restrictions and Oualif cations Relating
Votins
COUNT Violation the Fifteenth Amendmentand42 U.S.C.
1983.
79.
Plaintiffs incorporate reference all preceding paragraphs iffully
set forth herein.
80.
Act 195 and the registration process used the defendants restrict
who may register for the Roll the basis individuals Hawaiian ancestry
81.
The defendants fully intended restrict who may register for the Roll the basis ancestry, shown the plain text
Act 195 well the text
the online registration procedures, and shown numerous public statements
the defendants, including those made their registration website.
82.
Ancestry, the context Act 195 and the defendants registration
procedures, proxy for race.
83.
The registration process used the defendants conduct undertaken
under color Hawaii law, and, specifically, under Act 195.
84.
Act 195 and the defendants registration procedures deny and abridge
the rights Plaintiffs Kent and Mitsui vote account race, violation
the Fifteenth Amendment.
Case 1:15-cv-00322 Document Filed 08/13/15 Page
COUNT Violation the Equal Protection Clause the
Fourteenth Amendment and U.S.C. 1983.
85.
Plaintiffs incorporate reference all preceding paragraphs iffully
set forth herein.
86.
Act
195 and the registration process used the defendants
discriminate against Plaintiffs Kent and Mitsui account the fact that they are
not Native Hawaiians, defined their ancestry.
87.
Accordingly, Act 195 and the registration process used the
defendants discriminate against Plaintiffs Kent and Mitsui account their race.
88.
The registration process used the defendants conduct undertaken
under color Hawaii law, and, specifically, under Act 195
89.
Act
195 and the registration process used the defendants violate the
rights Plaintiffs Kent and Mitsui under the Fourteenth Amendment the equal
protection the laws.
COUNT Violation Section the Voting Rights Act.
90.
Plaintiffs incorporate reference all preceding paragraphs iffully
set forth herein.
91.
Section the Voting Rights Act, U.S.C. 10301, proscribes any
qualification prerequisite voting standard, practice, procedure
imposed applied any State political subdivision manner which results denial abridgement the right any citizen the United States vote
Case 1:15-cv-00322 Document Filed 08/13/15 Page
account ofrace color.
92.
Act
195 and the registration process used the defendants restrict
who may register for the Roll the basis individuals Hawaiian ancestry,
which proxy for race.
93.
The defendants fully intended restrict who may register for the Roll the basis ofrace.
94.
Act
195 intentionally discriminates, and has the result
discriminating, against Plaintiffs Kent and Mitsui the basis their race,
violation Section the Voting Rights Act.
Claims Allesing Viewpoint-Based Restriction Relating Votins
COUNT Violations the First Amendment, Fourteenth
Amendment, and U.S.C. 1983.
95.
Plaintiffs incorporate reference all preceding paragraphs iffully
set forth herein.
96.
Declaration One, which part the registration process available
the NHRCs website, requires applicant confirm this statement: affirm
unrelinquished sovereignty the Native Hawaiian people, and intent
participate the process self-govemance.
97. not possible register for the Roll without confirming this
statement.
the
Case 1:15-cv-00322 Document Filed 08/13/15 Page
98. practical matter, requiring confirmation this statement will
stack the electoral deck, guaranteeing that Roll registrants
will
support the outcome
favored the defendants any subsequent vote.
99.
Requiring agreement with Declaration One order register for the
Roll conduct undertaken under color Hawaii law.
100. conditioning registration upon agreement with Declaration
One,
the defendants are compelling speech based its content.
101. Requiring
agreement with Declaration One order register for the
Roll discriminates against those who not agree with that statement, including
Plaintiffs Akina and Makekau.
102. Forbidding those who not agree with Declaration One, including
Plaintiffs Akina and Makekau, register for the Roll amounts viewpoint
discrimination.
103.
There compelling justification for requiring applicants
confirm their agreement with Declaration One.
104. Forbidding those who not agree with Declaration One register
for the Roll blatant violation the rights Plaintiffs Akina and Makekau
under the First Amendment.
05.
Forbidding those who not agree with Declaration One register
for the Roll classification based speech, violation ofthe rights
Case 1:15-cv-00322 Document Filed 08/13/15 Page
Plaintiffs Akina and Makekau under the Fourteenth Amendment the equal
protection the laws.
Claims Allegins Race-Based Restrictions Candidates
COUNT Violation the Fifteenth Amendmentand U.S.C.
1983.
106. Plaintiffs incorporate reference all preceding
paragraphs fully
set forth herein.
07. Act
195 states part that its purpose facilitate the process under
which quatified Native Hawaiians may independently commence the organization convention qualified Native Hawaiians HAw. Rsv. Srer 10H-5
(emphasis added).
108.
The June 2015 contract between NAF and Election America, Inc,
speciflres part its Tentative Project Deadline the following item:
Deadline for E-A determine eligibility Delegate
Candidates.......September 30, 2015
109. information
and belief, the process for determining who may
candidate for the proposed constitutional convention restricts candidacy Native
Hawaiians, defined Hawaii law.
110. information
and belief, the nominating process for candidates
structured ensure that only Native Hawaiians
will become candidates.
Case 1:15-cv-00322 Document Filed 08/13/15 Page
The disqualiflrcation candidates based race conduct
undertaken under color Hawaii law.
The disqualification candidates based race violates the Fifteenth
Amendment rights all Hawaii voters, including Plaintiffs Akina, Makekau,
Kent, Mitsui, and Gapero.
COIINT Violation Section the Voting Rights Act.
13. Plaintiffs incorporate reference all preceding
paragraphs fully
set forth herein.
The disqualification candidates based race ensures that the
political processes leading nomination election the State are not equally
open participation citizens who are not Hawaiian.
15.
The disqualification candidates based race results
discriminatory abridgement the right vote.
16.
The disqualification candidates based race violation
Section the Voting Rights Act.
Claim Alleging Uniustified OualifTcation Based Communitv Ties
COIINT Violation the Equal Protection Clause the
Fourteenth Amendment and U.S.C. 1983.
17. Plaintiffs incorporate reference
set forth herein.
all preceding paragraphs fully
Case 1:15-cv-00322 Document Filed 08/13/15 Page
118. Declaration Two, which part the registration process available
the NHRCs website, requires applicant confirm this statement:
have
significant cultural, social civic connection the Native Hawaiian community.
119. Plaintiffs Kent and Mitsui
cannot affirm this statement they
understand it.
120. Requiring Plaintiffs Kent
and Mitsui confirm this statement
and, consequence, requiring them have such connections the Native Hawaiian
community burden Plaintiffs Kent and Mitsui that not required for the
sake election integrity, administrative convenience, any other sufficient
reason,
121. Voting fundamental right subj ect equal protection
guarantees
under the Fourteenth Amendment.
122. oting qualifications that infl ict discriminatory burdens without
justification are invalid under the Fourteenth Amendment.
123
Requiring Plaintiffs Kent and Mitsui have particular connections
with the Native Hawaiian community violates the rights Plaintiffs Kent and
Mitsui under the Fourteenth Amendment the equal protection the laws.
Case 1:15-cv-00322 Document Filed 08/13/15 Page
Claim Allesins Impairment Fundamental Right Vote
COIINT Violation the Due Process Clause the Fourteenth
Amendment and U.S.C. 1983.
124. Plaintiffs incorporate reference all preceding paragraphs fully
set forth herein.
125. Voting fundamental right protected the Due Process Clause
the Fourteenth Amendment the U.S. Constitution.
126. requiring Plaintiffs confirm Declarations
the registration process used the defendants
will
One, Two, and Three,
cause the planned election conducted manner that fundamentally unfair.
127. requiring Plaintiffs confirm Declarations
One, Two, and Three,
the registration process used the defendants burdens the right vote
ofall
Plaintiffs violation their constitutional rights Due Process.
Claim Alleging Compelled Speech Virtue Involuntary Resistration.
COUNT Violation the First Amendment and U.S.C.
1983.
28.
Plaintiffs incorporate reference all preceding paragraphs fully
set forth herein.
129
The First Amendment protects both the right speak freely and the
right refrain from speaking all.
130. Voter registration speech protected the First Amendment.
Case 1:15-cv-00322 Document Filed 08/13/15 Page
13I.
Forcibly registering individual amounts compelled speech.
132. addition, forcibly registering individual under conditions that
imply that that individual agrees with particular statements opinions amounts
compelled speech.
133.
The NHRC publishes and prominently displays the total number
individuals registered for the Roll its website, way bolster the legitimacy the Roll.
i34.
Plaintiffs Gapero and Moniz not wish bolster the legitimacy
the Roll.
135. publishing
and displaying the total number individuals
registered for the Roll its website, the NHRC implies that those individuals
have agreed Declaration One.
136. Plaintiffs Gapero
and Moniz have not agreed, and not agree, with
Declaration One.
137. registering Plaintiffs
Gapero and Moniz without their consent and
without notice them, the NHRC compelled their speech and violated their First
Amendment right refrain from speaking.
PRAYER FORRELIEF
Wherefore, plaintiffs respectfully pray that this Court:
Issue declaratoryjudgment finding that the registration procedures
Case 1:15-cv-00322 Document Filed 08/13/15 Page
relating the Roll violate the U.S. Constitution and federal law, set forth above;
Issue preliminary and perma ent relief enjoining the defendants from
requiring prospective applicants for any voter roll confirm Declaration One,
Declaration Two, Declaration Three, veriff their ancestry;
Issue preliminary and permanent relief enjoining the use the Roll
that has been developed using these procedures, and the calling, holding,
certifuing any election utilizing the Roll;
Order Defendants pay reasonable attomeys fees incurred
Plaintiffs, including litigation expenses and costs, pursuant U.S.C.
103 10(e)
and U.S.C. 1988;
Retain jurisdiction under Section 3(c) the Voting Rights Act,
U.S.C. 10302(c), for such period the Court deems appropriate and decree
that, during such period, voting qualiflrcation prerequisite voting
standard, practice, procedure with respect voting different from that force the time this proceeding was commenced shall enforced Defendants unless
and until the Court finds that such qualification, prerequisite, standard, practice,
procedure does not have the purpose and will not have the effect denying
abridging the right vote account ofrace color;
Retain jurisdiction issue any and all further orders that are
necessary satisfu the ends ofjustice; and
Case 1:15-cv-00322 Document Filed 08/13/15 Page
Award Plaintif any and all flrther relief that this Court deems just
and proper.
DATED: Honolulu, Hawaii, August 13.2015.
Lillv
MICHAEL LILLY
/s/ Michael
Attomey for Plaintiffs
KELII AKINA, KEALII
MAKEKAU, JOSEPHKENT,
YOSHIMASA SEANMITSUI,
PEDRO KANAE GAPERO,
and MELISSA LEINAALA
MONIZ